Gender pay gap reporting developments: final guidance published and first few reports uploaded to the Government reporting website

There have been two important developments to note in connection with the gender pay gap reporting regime which came into force on 6 April 2017. First, Acas and the GEO have published the final version of their guidance and there are a number of important changes between this and the draft version published in January. Second, the Government website which hosts employers' gender pay gap results has gone live and a number of employers have already uploaded their results.

1. Final ACAS / GEO guidance published:

Acas and the GEO have published the final version of their guidance on the gender pay gap reporting regime: "Managing gender pay reporting". The guidance is broadly the same as the draft version published in January, however, affected employers should be aware of the following key changes:

Scope of the Guidance

The Guidance has been extended to apply to public authorities who are covered by a separate, but near-identical, set of regulations. This has necessitated the following changes:

The guidance no longer refers to 5 April as the snapshot date. Instead the generic term "snapshot date" is used throughout because the date differs between the two sets of regulations (for public authorities it is 31 March and for private and voluntary sector employers it is 5 April) (see pages 6 and 23).

Advice is given on how to identify which set of regulations applies to a particular employer. Also highlighted are the small number of exceptions where large employers do not have to follow either set of regulations (see pages 7-8).

The guidance clarifies that the requirement for a supporting statement by an authorised person only applies to private and voluntary sector employers and not to public authorities (see pages 9 and 18).

The guidance highlights that the reporting deadline is different for public authorities (being 30 March 2018 and each year thereafter) and private and voluntary sector employers (being 4 April 2018 and each year thereafter) (see page 19).

Group-wide reporting

There is new section clarifying that the regulations apply to separate legal entities within a group structure, requiring separate reports to be published by each entity within scope. Group reporting can be done on a voluntary basis if wished, but this does not remove the obligation to report on a per entity basis (see page 7).

Treatment of partners

The guidance clarifies that where a partner would usually be considered to be an "employee" (i.e. for the purposes of s.83 of the Equality Act 2010) they will count towards the headcount for identifying whether the regulations apply. However, they will not be included in the calculation exercise (see page 29). This point is also reflected in the definition of "relevant employee" (i.e. the employees to be reported on), which is said to be all employees employed on snapshot date except for partners (see page 7).

Treatment of self-employed contractors

The guidance contains a new section entitled "Information for self-employed calculations", which provides that if the employer does not hold the necessary data required for its self-employed contractors, then they should consider whether it is reasonably practicable to obtain it. Although similar content had been included in the draft version, it has now been spelt out clearly under a separate heading (see page 10).

Treatment of ordinary pay

The guidance includes a number of additional points in relation to the treatment of ordinary pay:

In addition to excluding overtime pay from the definition of ordinary pay, any payments such as allowances earned during paid overtime hours (to the extent they can be clearly identified) should also be excluded (see page 24).

In the box highlighting examples of the types of allowances that should be included in ordinary pay, there is a new entry for "extra amounts for being on call" (see page 24).

Where payments for recruitment and retention are one-off incentive payments made at the start of employment, or more in the nature of a bonus that an allowance, they should be treated as incentive payments falling within bonus pay, rather than allowances falling within ordinary pay (see page 24).

It is pointed out that employers will need to make their own judgment on whether a payment is properly an allowance (included) or an expense (excluded) and may need to seek professional advice (see page 24).

Where an employee contributes to a pension by means of a salary sacrifice scheme the employee's gross salary after the reduction should be used (i.e. the amount sacrificed is not included in the calculation). However, it is worth noting that no such statement is made in respect of amounts sacrificed from a bonus payment into a pension. Whilst it would seem logical that the same approach should be adopted it is not completely clear (see page 26).

Treatment of bonus pay

The guidance includes a number of additional points in relation to the treatment of bonus pay:

A new paragraph states that long service awards with a monetary value are included in the definition of bonus pay, but other types of non-monetary award (e.g. additional annual leave) are benefits in kind and, therefore, excluded (see page 26).

A new sentence provides that whilst bonus pay does not include pay related to overtime, it may be difficult in practice to distinguish whether a bonus relates in whole or part to overtime hours and in such circumstances it should be included (see page 26).

Where a security is provided to an employee that does not give rise to income tax at all this should not be included in bonus pay (see pages 26 – 27).

Full pay relevant employees

The guidance includes two additional points in relation to who counts as a "full pay relevant employee":

Employees who are paid less during the pay period as a result of being on leave will not be a "full pay relevant employee" and this will be the case regardless of when the leave was taken (i.e. what matters is whether the pay is reduced in the relevant pay period) (see page 28).

Employees who are on zero pay during the relevant pay period for any reason (leave or otherwise) should be excluded from the gender pay calculations (see page 28).

Weekly working hours

The section on weekly working hours has been reorganised although the content is broadly the same. However, there are a few new points:

Employees should be treated as having normal weekly hours if they have the same contractual hours each week even if they frequently work additional unpaid hours (see page 30)

There is a new section on how to calculate weekly hours for new joiners (i.e. those who have worked fewer than 12 weeks) or those where there is another reason why the calculation cannot reasonably be made (see pages 30 – 31).

The draft guidance had offered a steer on how to treat on-call and sleeping-in arrangements, however, the final guidance simply says that whether or not such hours should be included must be in line with the National Minimum Wage Regulations 2015 (see page 32).

Other matters

Currency conversion: where currency needs to be converted to carry out the relevant calculations, the employer should generally use the exchange rate that applied at the date of payment (see page 9).

Voluntary narrative: the final guidance places increased emphasis on the need to provide a supporting narrative. The text has changed from: "Employers should also use the statement to add a supporting narrative…" to: "All employers should add a supporting narrative". However, it remains the case that the provision of a narrative is voluntary (see page 18).

Data protection: employers are warned to be mindful of the data protection principles when undertaking the data gathering and reporting process given that it may involve processing personal data (see page 20).

2. Government reporting website goes live:

The Government's gender pay gap results website is now up and running (in beta format), showing the results of 5 employers so far who have bitten the bullet and decided to report their results now. A link to the website is here. It's worth noting that the website only shows the bare figures and there is no field for the employer's voluntary narrative to be added. This seems a little surprising given the emphasis placed on providing a narrative in the guidance. There is an opportunity to provide feedback on the website.